No. 91-488 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

LEROY G. MEIDINGER, 

Claimant, Respondent and cross-~ppellant, 

-vs- c 

2 2, 

WESTERN ENERGY COMPANY, vd . ' ,L 

APPEAL FROM: The Workers' Compensation Court, 

The Honorable Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Robert T. OrLeary, Attorney at Law, Butte, Montana 

For Respondent: 

James E. Gardner, Attorney at Law, Billings, Montana 

Filed: 

Submitted on Briefs: May 28, 1992 

Decided: July 9, 1992 

# 

Clerk 
Justice John Conway Harrison delivered the Opinion of the Court. 

This is an appeal from a July 12, 1991 judgment of the 

Workerst compensation Court reinstating Leroy G. ~eidinger to 

temporary total disability benefits from the date of termination 

and continuing until maximum healing is reached, past due benefits 

are to be paid in a lump sum. In addition, Meidinger is entitled 

to ongoing medical care including physical therapy and massage as 

well as psychological therapy. The Workerst Compensation Court 

found that the claimant, Meidinger, is not entitled to a twenty 

percent penalty, but that he was entitled to reasonable costs and 

attorney's fees as provided by 5 39-71-611, MCA. To this judgment 

Meidinger cross-appealed. We affirm. 

The following issues are presented for review: 

1. Whether Western Energy Company properly terminated 

Meidingerls temporary total disability benefits in January 1989 

and, accordingly, he is not entitled to restoration of benefits as 

of that date nor costs and attorney's fees. 

2. Whether the Workers1 Compensation Court erred when it 

determined that Meidinger was entitled to reinstatement of 

temporary total disability benefits, physical and psychological 

therapy and massage, costs and attorney's fees. 

Meidinger is a thirty-four-year-old employee of Western Energy 

Company (Western) whose work history includes truck driving, shovel 

oiler and construction. In 1983, he began work as a field mechanic 

for Long construction at the Colstrip power plant site. In 1985, 

Western took over the tasks performed by Long Construction and 
claimant continued his employment as a shop mechanic for the next 

two years for Western. Prior to June 11, 1986, Meidinger took and 

passed a physical examination. 

On June 11, 1986, Meidinger and two co-workers were assigned 

to rebuild an oar crusher that had recently been repaired. 

Meidinger was injured while attempting to cross from one side of 

the crusher bin to the other while stepping on an iron bar which 

bisected the rectangular bin. His foot slipped and he fell, 

striking his leg on the cross-bar while grabbing the side of the 

bin with his hands. Meidinger experienced immediate pain in his 

left leg and low back. He timely reported the injury to Western 

and claims for compensation and medical benefits were completed and 

filed. 

For the next two and one-half years, Meidinger received 

medical benefits relating to alleged injuries he sustained from the 

above-described accident. Meidinger began medical treatment with 

chiropractor Dr. Roger Dahl who saw him three days after the 

accident. Over the course of the two and one-half years after the 

accident, and in addition to Dr. Dahl, Meidinger was treated by 

three chiropractors, three orthopedic surgeons, one neurosurgeon, 

six neurologists, one psychiatrist, and one physical therapist. 

Meidinger has undergone diagnostic procedures including three CT 

scans, two myleograms, three MRIs, multiple plain x-rays, and one 

EMG study; all of which were negative for organic, objective 

findings to verify any back or disc problems. 

Following the accident, Meidinger received temporary total 

disability benefits for the week following his injury. He worked 

3 
for the next six months until sometime in December 1986, when he 

discontinued work complaining of low back and leg problems; he 

again began receiving temporary total disability benefits until 

January 25, 1989. 

In a report to Western dated December 23, 1988, Drs. Shaw and 

Williams, reported that they could find no objective evidence of 

structural disease of Meidingerfs spine, could not find evidence of 

damage to the nerves, nor could they find any neurological 

abnormalities. Dr. Shawls report advised Western that he could 

find no objective medical explanation for Meidinger's pain, that 

any medical conditions attributed to the accident of June 11 were 

at that time stable and that Meidinger had reached maximum healing. 

Dr. Shaw imposed no restriction on Meidinger's activities and could 

find no reason why he could not return to full normal activity. 

Based upon the examinations of Drs. Shaw and Williams, Western, as 

required by law, gave Meidinger a fourteen-day notice of 

termination of benefits and advised him to return to his mechanicfs 

job at the Rosebud Mine on January 23, 1989. Meidinger failed to 

return to work thereby terminating his seniority with Western in 

accordance with the collective bargaining agreement under which he 

was employed. 

Meidinger continued to be treated by Dr. Nelson, a neurologist 

in Billings, after the termination of his bi-weekly compensation 

benefits. Western continued to pay medical benefits for subsequent 

examinations and treatment as well as for any prescription drug 

charges Meidinger incurred. 

Western argues that it justifiably terminated Meidingerls 

4 
benefits on the basis that there was no medical evidence introduced 

at the hearings by either Meidinger or Western that disclosed any 

objective medical reason for Meidinqerls complaints, including why 

he favored his left leg while standing or walking. It is Western's 

contention that it retained two acknowledged Billings experts, Drs. 

Williams and Shaw, to conduct independent medical examinations and 

additional tests in order to determine if there were any medical 

reasons for Meidingerls complaints; the doctors found no reason why 

Meidinger could not return to work. 

That Meidinger failed to prove by a preponderance of the 

evidence that any physical or psychological injury he now suffers 

is caused by his occupational injury on June 11, 1986. 

Western objects to the Workers' Compensation Courtls finding 

that Meidinger suffers from a mixture of psychological and physical 

problems related to his injury and that he is entitled to the 

restoration of benefits from January 1989, the date of termination, 

until maximum healing is reached. Western cites Hutchinson v. 

Pierce Packing Co. (l985), 219 Mont. 18, 710 P.2d 64; Frost v. 

Anaconda Co. (1985)) 216 Mont. 387, 701 P.2d 987; Ricks v. Testlow 

Consolidated (l973), 162 Mont. 469, 512 P.2d 1304; Currey v. 10 

Minute Lube (19871, 226 Mont. 445, 736 P.2d 113. See also Dumont 

v. Wickens Bros. Const. Co. (1979), 183 Mont. 190, 598 P.2d 1099. 

We note that in view of the fact that Western relied on Dr. 

Shawls report of Meidingerls condition, we concur with the Workers1 

Compensation Judge's finding that the report does not justify 

termination of benefits. In his December 1988 report to Western, 
Dr. Shaw stated in part: 

I believe that any medical conditions directly 

attributable to [Meidinger's] accident of June 11, 1986 

are at this time stable and have reached a maximum 

medical benefit. No further medical workup appears 

indicated. No further medical treatment appears 

warranted. I would anticipate no need for any surgical 

interventions now or in the foreseeable future. I would 

not anticipate any conditions directly related to that 

accident would progress or deteriorate in the foreseeable 

future. Strictly as it relates to conditions directly 

attributable to that accident, I would assess no 

impairment rating in accordance with the American Medical 

Association, I would impose no restrictions on his 

activity. I can find no medical reason which would 

prevent him from safely returning to full normal 

activity. 

I would note that this man may have a psychologic 

condition which warrants evaluation and treatment. I 

cannot clearly attribute such a psychologic condition to 

his accident of June 11, 1986. 

In addition we note that two doctors reviewed the record of 

~eidinger's employability as of January 1989, Dr. Dahl, a 

chiropractor and the first professional who treated Meidinger, and 

Dr. Cooney, a neurologist, disapproved of Meidinqerfs returning to 

his previously-held job with Western. Dr. Cooney in his report of 

September 1989 stated: 

I believe . . . [Meidinger] is experiencing and has been 

experiencing significant pain in the low back and left 

leg, which resulted in his abnormal gait and posture. In 

view of the longstanding nature of that problem, he 

subsequently developed significant flexion contractures 

of the left lower extremity which preclude him [from] 

standing or walking in a normal fashion. Further, the 

abnormalities of stance and gait have likely aggravated 

his low back pain. This appears to be a vicious cycle. 

I do not expect to see rapid improvement in these 

symptoms even with appropriate and effective physical 

therapy for the low back and left lower extremity. I 

suspect that he will require at least 6 months of 

intensive physical therapy before siqnificant improvement 

in these conditions occur. I would emphasize that Mr. 

Meidinger has the potential to be returned to his 

preinjury state, I think that he is quite frustrated at 
this point, in view of his pain and physical limitations. 

I have attempted to reassure him that with appropriate 

therapy, that I would expect these conditions to improve 

substantially. He appears to be a very candid and 

credible man. I do not believe that he is exaggerating 

his symptoms, or their effect on his life. 

The Workers1 Compensation Court in Conclusions of Law Numbers 

2, 3, and 4 noted: 

2. Claimant is presently temporarily totally 

disabled and entitled to reinstatement of temporary total 

disability benefits from the date of termination and 

continuing until maximum hearing is reached. 

Section 39-71-116(19), MCA, as it read at the time 

of claimant's injury was as follows: 

(19) I1Temporary total disabilityn means a condition resulting from an injury as defined in this chapter that 

results in total loss of wages and exists until the 

injured worker is as far restored as the permanent 

character of the injuries will permit. Disability shall 

be supported by a preponderance of medical evidence. 

Given the reports of Dr. Cooney and Dr. Nelson as 

well as the physical therapist, it is clear to the Court 

that claimant's physical condition as it relates to his 

low back and leg is treatable with physical therapy and 

massage. 

Dr. Shaw, who provided what amounted to an 

unequivocal release based on claimantts physical exam, 

nonetheless noted the ongoing psychological component of 

his condition and did not question its authenticity or 

re2ationship to the June 1986 injury. 

In our review of this record, the Court is convinced 

that much of claimant's physical condition relative to 

his muscle contraction and pain in the leg is 

psychological in origin. However, the claimantls 

psychological condition is equally compensable as related 

to the injury. (See Schumacher v. Emplovers Mutual 

Liability Ins. Co., 175 Mont. 411, 574 P.2d 987 (1977).) 

The conversion reaction recognized by Doctors Lovitt, 

See, Robinson, Shaw, Nelson, and Newman is compensable as 

it is related to the physical injury of June 11, 1986. 

Because of that psychological response, claimant has 

developed a serious physical problem with his 1 eg and low 

back. 

What is significant as it pertains to temporary 
total disability benefits is that the psychiatrist Dr. 

Newman believes the psychological condition is treatable 

and Dr. Cooney and others believe the physical component 

is equally treatable by therapy and massage. Indeed, it 

appears that according to Dr. Cooney, six months of 

therapy may be sufficient. When the defendant terminated 

benefits in January 1989, it relied on the report of Dr. 

Shaw and others. However, we conclude that the mixture 

of the psychological component and the physical problems 

manifested in response, are not at maximum healing and 

are compensable. 

The claimant must cooperate and participate in both 

the physical therapy program prescribed as well as 

treatment for his psychological disorder. Any failure to 

do so may result in a suspension of benefits per section 

39-71-605, MCA. [Emphasis in original.] 

3. The medical benefits are to continue and shall 

include the payment of the psychological and physical 

therapy treatments discussed herein. 

4. The claimant is not entitled to a twenty percent 

penalty per section 39-71-2907, MCA. 

Given the disparity of accident descriptions, the 

multiple medical exams and reports which all proved 

essentially negative, we do not believe a penalty is 

warranted [under 5 39-71-2907, MCA]. . . . 

The question of unreasonableness is considered on a 

case by case basis. Up until Dr. Cooney's report, the 

medical evidence preponderated in favor of a conclusion 

that claimant had minimal or no objective evidence to 

preclude him from working. As such, a genuine dispute 

existed which the Court believes does not warrant a 

penalty. Wiaht v. lHucrhes Livestock Co.1 [I94 Mont. 

1091, 634 P.2d 1189 . . . (1981). 

The Workerst Compensation Court is affirmed. 
We concur: